Chuck Hagel, ambushed by unnamed enemies

Even the lowliest crook on trial for petty larceny has the right to confront his accusers in open court. But a public servant who wishes to be Secretary of Defense gets no such opportunity.

That's the dirty deal for Chuck Hagel, whose Senate confirmation hearing happens today. The former Nebraska Republican senator and decorated Vietnam vet, tapped by President Obama to run the Pentagon, has been lately assailed in a slew of TV ads financed by shadowy donors who refuse to identify themselves. This is the first time that a Cabinet nominee has been ambushed in this manner by cowards who operate under the cloak of anonymity, thus marking another new low in our debased public dialogue.

What's most disturbing is not the shrillness of the attacks on Hagel - he's being tarred as an anti-Semitic homophobe who would weaken America's security - but, rather, the fact that we don't know who the attackers are. Long after the cartoon smears are forgotten, long after Hagel is confirmed and on the job, we'll be stuck with the systemic loopholes that make such anonymous smears possible. And future aspirants will have to run the same gauntlet.

Hagel has been ambushed by groups with names like "American Future Fund" and "Use Your Mandate." In a fairer world, he'd have the right to know who is pulling their strings. But not in this world. Take American Future Fund, for instance. It's officially listed as a tax-exempt nonprofit "social welfare" group, under section 501(c)(4) of the federal tax code. "Social welfare" nonprofits are not required to identify their donors. Bingo.

It just so happens that American Future Fund is mostly engaged in politics, not "social welfare." According to a report by ProPublica, a respected investigative journalism website, AFF has been abusing the tax code rules since its inception. Back in 2008, it stated in its application to the IRS that it didn't plan to engage in politics - yet on the same day it mailed the application, it posted an ad on YouTube praising a Republican senator. Then it spent $8 million on politics in the 2010 midterms. But its abuses don't matter, however, because the IRS doesn't enforce the rules.

At least AFF has a website, through which we can infer its political leanings (it was founded by a Republican strategist). And the brand-new group known as Americans for a Strong Defense has a website as well, and it's apparently of the neoconservative persuasion - but, again, good luck trying to find out who the donors are. Way more mysterious is the brand-new outfit known as Use Your Mandate. It purports to be a liberal group (its TV ad assails Hagel as "anti-gay" and says, "That's not what we voted for in November"), but it doesn't have a website, and, according to the sketchy federal records, it works closely with one of America's leading Republican ad-buying firms. We could easily solve the mystery if we knew who the donors were. But, again, good luck trying to find out.

The landmark Citizens United court ruling, which basically unleashed unlimited special interest spending in the political realm, did not create the nonprofit "social welfare" loophole. The loophole has been around for decades. The difference today is that rich people, special interests, and political activists are taking full advantage of the loophole, having become emboldened by the spirit of Citizens United. (Both sides are playing this game, of course. Obama is launching a new nonprofit "social welfare" group, Organizing for Action, although his team promises to voluntarily identify their donors. We'll see about that.)

Actually, Hagel would not be under fire from the shadows if Congress had seen fit to reform the system. For several years now, a bill that would require the public discosure of donors - known as the DISCLOSE Act - has twisted in limbo. You will be hardly be shocked to learn that it died again last summer in the Senate thanks to a Republican filibuster. There once was a time when Senate Republicans heartily endorsed disclosure (Texas Sen. John Cornyn, 2010: "The system needs more transparency, so people can reach their own conclusions"; Alabama Sen. Jeff Sessions, 2010: "I don't like it when a large source of money is out there funding ads and is unaccountable"), but that was before they decided that secrecy might be an asset.

Are the donors behind Use Your Mandate really liberals - or are they right-wingers masquerading as liberals? It's no wonder that a prominent public servant complained, in a guest newspaper column last summer, that "we are inundated wth extraordinarily negative advertising on television...and have no way to know who is paying for it and what their agenda might be." Given what he called "the possibility of being blindsided by a well-funded anonymous campaign," there are clearly "long-term consequences that will hurt our democracy profoundly."

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